[Federal Register Volume 76, Number 162 (Monday, August 22, 2011)]
[Proposed Rules]
[Pages 52295-52297]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-21306]
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DEPARTMENT OF THE INTERIOR
43 CFR Part 2
RIN 1090-AA94
Amendment of Privacy Act Regulations, Request for Comments
AGENCY: Office of the Secretary, Interior.
ACTION: Proposed Rule.
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SUMMARY: The Department of the Interior is amending its regulations to
exempt certain records from particular provisions of the Privacy Act.
Specifically, the Department proposes to exempt certain records of the
newly-created Debarment and Suspension Program system of records from
one or more provisions of the Privacy Act.
DATES: Submit written comments on October 3, 2011.
ADDRESSES: Send written comments, identified by RIN 1090-AA94, by one
of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Karen Burke, OS/NBC Privacy Act Officer, Office of
the Secretary, Department of the Interior, 1951 Constitution Ave, NW.,
Mail Stop 116 SIB, Washington, DC 20240.
E-mail: Karen Burke, OS/NBC Privacy Act Officer, Office of
the Secretary, privacy@nbc.gov.
FOR FURTHER INFORMATION CONTACT: Karen Burke, OS/NBC Privacy Act
Officer, Office of the Secretary, U.S. Department of the Interior, 1951
Constitution Avenue, NW., Mail Stop 116 SIB, Washington, DC 20240. E-
mail at privacy@nbc.gov.
SUPPLEMENTARY INFORMATION:
Background
The Department of the Interior (DOI) Office of Acquisition and
Property Management maintains the Debarment and Suspension Program
system of records. The primary purpose of this system of records is to
assist DOI in conducting and documenting debarment and suspension
proceedings to ensure that Federal procurements and Federal
discretionary assistance, loans, and benefits are awarded to presently
responsible business entities, organizations, and individuals.
Additional purposes of the system are to: Promote understanding of the
case decision path and concerns addressed by the debarring and
suspending official in reaching a decision; to promote the submission
of relevant arguments in contested cases; to educate the public and
private bar as to the kinds of mitigating factors and remedial measures
that demonstrate present responsibility; and to enhance the
transparency of decision making.
Pursuant to 5 U.S.C. 552a (k)(2) and (k)(5), the head of a Federal
agency may promulgate rules to exempt a system of records from certain
provisions of 5 U.S.C. 552a if the system of records is ``investigatory
material complied for law enforcement purposes, other than material
within the scope of subsection (j)(2)'' or ``investigatory material
compiled solely for the purpose of determining suitability,
eligibility, or qualifications for Federal civilian employment,
military service, Federal contracts, or access to classified
information. * * *''
To the extent that this system of records contains investigatory
material within the provision of 5 U.S.C. 552a(k)(2) and (k)(5), the
Department of the Interior proposes to exempt the Debarment and
Suspension Program System of Records from provisions 5 U.S.C.
552a(c)(3); (d); (e)(1), (e)(4)(G), (H), (I); and (f). Exemptions from
these particular subsections are justified for the following reasons:
1. From subsection (c)(3) because granting access to the accounting
for each disclosure as normally required by the Privacy Act, including
the date, nature, and purpose of each disclosure and the identity of
the recipient, could alert the subject to the existence of the
investigation or action interest by DOI or other agencies. This could
seriously compromise case preparation by prematurely revealing its
existence and nature; compromise or interfere with witnesses or make
witnesses reluctant to cooperate; and/or lead to suppression,
alteration, or destruction of evidence.
2. From subsections (d) and (f) because providing access to records
of a debarment or suspension action investigation and the right to
contest the contents of those records and force changes to be made to
the information contained therein to individuals whose names may appear
in the records due to having provided information about a respondent
but who are not the subject of the debarment or suspension action would
seriously interfere with and thwart the orderly and unbiased conduct of
the investigation, impede debarment or suspension case preparation,
and/or conflict with the evidentiary fact finding process under the
debarment and suspension rules.
Providing rights normally afforded under the Privacy Act and agency
rules could provide the subject with valuable information that would
allow interference with or compromise of witnesses or render witnesses
reluctant to cooperate; lead to suppression, alteration, or result in
destruction of evidence interfering with the development of the
suspension or debarment action; and/or jeopardize pending or ongoing
judicial proceedings or impede the ability to act to protect Federal
procurement and non-procurement program interests. Additionally, the
debarment and suspension rules provide a process which accords
recipients of action notices, as part of the contest process, the
opportunity, where facts material to the action are determined to be
genuinely in dispute, for an evidentiary fact finding hearing at which
to confront and cross examine the government's witnesses.
3. From subsection (e)(1) because it is not always possible to
detect the relevance or necessity of each piece of information in the
early stages of an investigation. In some cases, it is only after the
information is evaluated in light of other evidence that its relevance
and necessity to accomplish a purpose of the agency will be clear.
4. From subsections (e)(4)(G) and (H) because there is no necessity
for such publication since the system of records will be exempt from
the underlying duties to provide notification about and access to
information in the system and to make amendments to and corrections of
the information in the system.
5. From subsection (e)(4)(I) because to the extent that this
provision is construed to require more detailed disclosure than the
broad, generic information currently published in the system notice, an
exemption from this provision is necessary to protect the
confidentiality of sources of information and to protect privacy and
physical safety of witnesses and informants. DOI will, nevertheless,
continue to publish such a notice in broad generic terms as is its
current practice.
[[Page 52296]]
Procedural Requirements
1. Regulatory Planning and Review (E.O. 12866)
The Office of Management and Budget (OMB) has determined that this
rule is not a significant rule and has not reviewed it under the
requirements of Executive Order 12866. We have evaluated the impacts of
the rule as required by E.O. 12866 and have determined that it does not
meet the criteria for a significant regulatory action. The results of
our evaluation are given below.
(a) This rule will not have an annual effect of $100 million or
more on the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or Tribal governments or communities.
(b) This rule would not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
(c) This rule does not alter the budgetary effects of entitlements,
grants, user fees, concessions, loan programs, water contracts,
management agreements, or the rights and obligations of their
recipients.
(d) This rule does not raise any novel legal or policy issues.
2. Regulatory Flexibility Act
The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
This rule does not impose a requirement for small businesses to report
or keep records on any of the requirements contained in this rule. The
exemptions to the Privacy Act apply to individuals, and individuals are
not covered entities under the Regulatory Flexibility Act.
3. Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
(a) Does not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
United States-based enterprises to compete with foreign-based
enterprises.
4. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments in the aggregate, or on the private sector, of more
than $100 million per year. The rule does not have a significant or
unique effect on State, local, or Tribal governments or the private
sector. This rule makes only minor changes to 43 CFR part 2. A
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
5. Takings (E.O. 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. This rule makes only minor changes to
43 CFR part 2. A takings implication assessment is not required.
6. Federalism (E.O. 13132)
In accordance with Executive Order 13132, this rule does not have
any federalism implications to warrant the preparation of a Federalism
Assessment. The rule is not associated with, nor will it have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. A
Federalism Assessment is not required.
7. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule:
(a) Does not unduly burden the judicial system.
(b) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(c) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
8. Consultation With Indian Tribes (E.O. 13175)
In accordance with Executive Order 13175, the Department of the
Interior has evaluated this rule and determined that it would have no
substantial effects on Federally recognized Indian Tribes.
9. Paperwork Reduction Act
This rule does not require an information collection from 10 or
more parties and a submission under the Paperwork Reduction Act is not
required.
10. National Environmental Policy Act
This rule does not constitute a major Federal action and would not
have a significant effect on the quality of the human environment.
Therefore, this rule does not require the preparation of an
environmental assessment or environmental impact statement under the
requirements of the National Environmental Policy Act of 1969.
11. Data Quality Act
In developing this rule, there was no need to conduct or use a
study, experiment, or survey requiring peer review under the Data
Quality Act (Pub. L. 106-554).
12. Effects on Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211. A Statement of Energy Effects is not
required.
13. Clarity of This Regulation
We are required by Executive Order 12866 and 12988, the Plain
Writing Act of 2010 (H.R. 946), and the Presidential Memorandum of June
1, 1998, to write all rules in plain language. This means each rule we
publish must:
--Be logically organized;
--Use the active voice to address readers directly;
--Use clear language rather than jargon;
--Be divided into short sections and sentences; and
--Use lists and tables wherever possible.
List of Subjects in 43 CFR Part 2
Privacy Act, Sensitive information, Freedom of Information Act,
Reporting and recordkeeping requirements.
Dated: August 9, 2011.
Rhea Suh,
Assistant Secretary for Policy, Management and Budget.
For the reasons stated in the preamble, the Department of the
Interior proposes to amend 43 CFR part 2 as follows:
PART 2--RECORDS AND TESTIMONY; FREEDOM OF INFORMATION ACT
1. The authority citation for part 2 continues to read as follows:
Authority: 5 U.S.C. 301, 552 and 552a; 31 U.S.C. 9701 and 43
U.S.C. 1460-1461. Appendix F to Part 2 also is issued under 30
U.S.C. 201-209; 30 U.S.C. 351-360.
2. In Sec. 2.79, add paragraphs (b)(14) and (c)(4) to read as
follows:
Sec. 2.79 Exemptions.
* * * * *
[[Page 52297]]
(b)* * *
(14) Debarment and Suspension Program, DOI-11.
(c)* * *
(4) Debarment and Suspension Program, DOI-11.
* * * * *
[FR Doc. 2011-21306 Filed 8-19-11; 8:45 am]
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